Sanjay Kumar vs The State
2009 Latest Caselaw 1363 Del

*                 HIGH COURT OF DELHI : NEW DELHI


                 Judgment reserved on : March 31, 2009
                 Judgment delivered on : April 13, 2009

+                      Crl. Appeal No. 196 of 2000
        Sanjay Kumar                    ...             Appellant
                            Through:    Mr. Dharambir Singh, Advocate


                                       versus

        The State                             ...        Respondent
                            Through:    Mr. Amit Sharma, Additional
                                        Public Prosecutor for State

CORAM:

HON'BLE MR. JUSTICE SUNIL GAUR

1.      Whether the Reporters of local papers may
        be allowed to see the judgment?

2.      To be referred to Reporter or not?

3.      Whether the judgment should be reported
        in the Digest?

SUNIL GAUR, J.

1. The legality of conviction of Appellant - husband of the

deceased for the offence of „dowry death‟ is under challenge in this

appeal.

2. Appellant- Sanjay Kumar S/o Sh. Prem Nath was married

with Premwati in the year 1994. On 6th October, 1998, Premwati

died un-natural death in her matrimonial house by hanging herself

with the help of a ligature and the appellant was accused of

causing "dowry death" in this case.

Crl. A. No. 196/2000 Page 1

3. On being informed of this incident, mother of the deceased-

Premwati, made a statement before the SDM, Seema Puri, Delhi,

alleging that her daughter's husband, i.e., appellant/accused

herein, used to demand dowry from her daughter. On her

aforesaid statement, FIR No. 633 of 1998, for the offence under

Section 498-A and 304-B of the Indian Penal Code, was registered

at Police Station Nand Nagri, Delhi. Investigation of the case was

entrusted to Sub-Inspector Narinder Singh. Appellant/accused was

arrested and dead body of deceased- Premwati was sent for post-

mortem examination.

4. After completion of investigation of this case, appellant-

accused was charged for committing offence under Section 304-B

and under Section 498-A of the IPC and he had claimed trial.

Twelve witnesses have deposed in this case and the material

evidence is of mother Panna Devi (PW-11) and brother Slekh Ram

(PW-1) of the deceased. Sub-Inspector Narender Singh (PW-12)

is the Investigating officer of this case. The medical evidence is of

Dr. K.K. Banerjee (PW-10) who has opined that the cause the

death of the deceased was due to asphyxia, as a result of ante-

mortem constriction on the neck by a ligature.

5. Appellant- Sanjay Kumar in his statement under Section 313

Cr.P.C. before the trial court had claimed that since his wife had

gone to the house of her sister to recover the money which she

had lend to her and when she could not get back the amount,

Crl. A. No. 196/2000 Page 2 being frustrated, she committed suicide while he was away from

home. He also claimed that he is innocent and alleged his false

implication in this case. However, no witness was got examined

by the appellant/accused in his defence.

6. After the trial, appellant has been convicted by the trial court

for committing offences under Section 304-B and under Section

498-A of the Indian Penal Code and he is sentenced to undergo

Rigorous Imprisonment for ten years for the offence under Section

304-B of the IPC and to Rigorous Imprisonment for three years

and a fine of Rupees one thousand for the offence under Section

498-A of the IPC and in default, further rigorous imprisonment for

four months. Trial Court has ordered both these substantive

sentences to run concurrently. Hence this appeal.

7. I have heard the arguments advanced by learned Counsel

representing the appellant and Public Prosecutor for the State and

have also gone through the record of this case.

8. For securing conviction for the offence of dowry death,

prosecution has to establish that the deceased had died unnatural

death within seven years of her marriage with the accused and

that „soon before her death‟ she has been subjected to cruelty and

harassment by the accused. After scanning through the evidence

on record, I do find that the prosecution has succeeded in

establishing that the deceased had died unnatural death in her

matrimonial house within seven years of her marriage with the

Crl. A. No. 196/2000 Page 3 Appellant/accused. In fact, the marriage was four years old and

two children were born out of the wedlock of the deceased with the

Appellant/accused.

9. The crucial ingredient of the offence of dowry death, is that

the prosecution must conclusively establish that „soon before her

death‟ the deceased was subjected to cruelty at the hands of the

accused. Then only, the statutory presumption under Section 113-

B of the Evidence Act of committing dowry death would arise

against the accused. The evidence on record has been scrutinised

with a view to find out as to whether aforesaid crucial ingredient of

the offence of dowry death is established by the prosecution in this

case. The law was set into motion by Panna Devi (PW-11) who

happens to be the mother of the deceased. There is evidence of

Slekh Chand (PW-1), brother of the deceased also, which has

been heavily relied upon by the trial court to convict the

Appellant/accused for the offence of „dowry death‟ in this case.

10. First of all, I would advert to the evidence of the most

material witness of this case, who is Panna Devi (PW-11), mother

of the deceased. The material portion of her deposition needs to

be highlighted and the same is as follows:-

"My daughter Prem Wati was married to the accused present before the court. My daughter was married to the accused about 7-8 years ago. At the time of marriage there was no demand from the side of the bridegroom party. Accused was not keeping my

Crl. A. No. 196/2000 Page 4 daughter decently. He used to harass her, since he was not an earning hand. The accused used to consume liquor and gamble. There was nothing to eat in the kitchen of the accused. On that account, my daughter used to feel frustrated. The accused used to beat my daughter, in order to force her to bring money from her parental home. There were two children born out of this wedlock. My daughter had conceived again. I used to advise the accused, but in vain. Whenever my daughter used to go to her matrimonial home, we used to pay money to her. Despite this fact, there was no peace in the matrimonial home of my daughter."

11. The rest of the deposition of this witness (PW-11) does not

disclose that the deceased was subjected to cruelty by the

Appellant/accused „soon before her death‟. It has come in the

cross-examination of this witness (PW-11) by the defence that she

had one son (PW-1) only and she used to tell him about the ill

treatment and harassment of the deceased. Trial Judge has mainly

relied upon the evidence of the only son (PW-1) of the star witness

(PW-11) and this son-Slekh Chand (PW-1) is the brother of the

deceased and after scrutinising his deposition, it is found out that

he had made material improvements in his evidence to bring this

case within the ambit of section 306 of the Indian Penal Code, but

still, it does not fall within the parameters of section 304-B of the

Indian Penal Code, as even the improved version of brother (PW-

1) of the deceased does not disclose that „soon before her death‟,

the deceased was subjected to any kind of cruelty.

Crl. A. No. 196/2000 Page 5

12. The counter version of this incident from the side of the

appellant/accused, as finds mention in the statement under

Section 313 of Cr. P.C., of the appellant/accused is as under:-

"I am innocent. My wife had gone to demand money from her sister. A sum of Rs.10,000/- had borrowed by my sister-in-law from my wife. My wife had gone to her sister to recover the amount. My sister-in-law and her husband had quarrelled with my wife. My wife returned from the house of her sister. She was frustrated a lot. I had gone for my job. At my back my wife had committed suicide on account of her frustration which she had developed when her sister had not returned her money."

13. Aforesaid counter version is clearly an afterthought as it has

not been so suggested to the mother (PW-11) or brother (PW-1) of

the deceased. What has been suggested to the mother of the

deceased by the defence is that the deceased had deposited a

sum of Rs.10,000/- with her brother, who had refused to return it

and therefore, the deceased had committed suicide. In fact, the

stand taken by the appellant/accused in his statement under

Section 313 Cr. P.C. is that the money was given by the deceased

to her sister-in-law. In any case, no such suggestion has been

given by the defence to the brother of the deceased and the so

called sister-in-law of the deceased has not been got examined in

defence. Therefore, the defence of the appellant/accused is not at

all plausible and it deserves to be discarded. Anyhow, conviction of

the appellant/accused cannot be justified by pointing out that the

Crl. A. No. 196/2000 Page 6 defence is not plausible. First, the prosecution case has to be seen

and once the prosecution establishes its case, then only, the

plausibility of the defence has to be considered. So, let us revert

to the prosecution version.

14. During the course of the arguments in this appeal, learned

counsel for appellant had pointed out that the impugned judgment

is all rhetoric and it lacks substance. After going through the

impugned judgment, I find that learned counsel for appellant is

right in his submission. Trial judge has jumped to a conclusion that

the greed of the Appellant/accused had made him a beast.

Unfortunately, the evidence on record does not support the

aforesaid conclusion of the trial judge. In serious offences, like the

present one, trial judges have to exercise restraint and are not

expected to be carried away with emotional upswing. The

evidence on record has to be read as it is and not in between the

lines and no inferences are to be drawn by reading the evidence

selectively. This court is constrained to observe that the trial judge

has committed a grave error in doing so.

15. Be that as it may. This court has to independently assess the

evidence on record. Although, the chief examination of brother

(PW-1) of the deceased makes an impressive reading, regarding

deceased being subjected to cruelty at the hands of the

Appellant/accused, but in the cross-examination by the defence,

he admits that he had not mentioned the fact of harassment or

Crl. A. No. 196/2000 Page 7 beating of the deceased by the Appellant/accused in his statement

before the SDM because he was not told these facts by his

mother. On this aspect, brother (PW-1) of the deceased stands

contradicted by his mother (PW-11) who has categorically stated in

her evidence that she had told about Appellant/accused beating

the deceased, in order to force her to bring money from her

parental house. After dispassionately scrutinising the evidence of

brother (PW-1) of the deceased, I find that his evidence is

materially improved version and is an afterthought and the same

cannot be relied upon to convict the Appellant/accused for the

offence of „dowry death‟ and the trial judge has gravely erred in

doing so. Therefore, the evidence of brother (PW-1) of the

deceased has not to be taken into consideration while determining

as to whether the offence under Section 306 of Indian Penal Code

which is lesser offence than of „dowry death‟, is made out or not.

For this purpose, the evidence of mother (PW-11) of the deceased

has to be analysed. Upon doing so, it is found that from deposition

of the mother (PW-11) of the deceased, the offence under Section

498-A of the Indian Penal Code is clearly made out.

16. The cruelty, as envisaged under Section 498-A of Indian

Penal Code, has to be of such a magnitude that it impels or

compels such a lady to commit suicide. No doubt, mother (PW-11)

of the deceased has stated in her evidence that Appellant/accused

used to beat her daughter (since deceased), in order to force her

to bring money from her parental home. This is the most Crl. A. No. 196/2000 Page 8 incriminating evidence in the deposition of mother (PW-11) of the

deceased. She does not elaborate in her evidence as to what

amount was demanded by Appellant/accused and when and for

what purpose. Rather, it has come in the evidence of mother (PW-

11) of the deceased that at the time of marriage in question, there

was no demand of dowry from the side of the Appellant/accused.

In fact, this witness (PW-11) has clearly stated in her evidence that

her daughter (since deceased) had committed suicide because

she was frustrated as there was nothing in the kitchen to eat. It

does not make any sense, when this witness (PW-11) states in her

evidence that Appellant/accused used to harass the deceased,

since he was not an earning hand.

17. It is true that it emerges from evidence on record that

Appellant/accused used to consume liquor and used to gamble,

but it does not aggravate the offence of cruelty committed by the

Appellant/accused, for the reason that the evidence is lacking

regarding Appellant/accused subjecting the deceased to cruelty to

bring money and to give it to him for buying liquor or for the

purpose of gambling. Trial court has gravely erred in inferring so.

For convicting an accused for a serious offence, the evidence has

to be unambiguous and clinching and it is not permissible to draw

inferences to project that the deceased was subjected to cruelty of

such magnitude to bring the offence within the ambit of section

304-B of the Indian Penal Code or within the sweep of section 306

of Indian Penal Code.

Crl. A. No. 196/2000 Page 9

18. It is the mandate of law that making of a demand for money

by the accused, by itself, is not sufficient to rope him in for a

serious offence of „dowry death‟ or abetment of suicide, until and

unless, it is shown that non-fulfilment of such a demand had

resulted in inflicting of cruel treatment of such a nature, which

would impel or compel any prudent lady to put an end to her life.

19. A three Judge Bench of the Apex Court in the case of

„Ramesh Kumar v. State of Chhattisgarh‟, 2001 (4) RCR Criminal

537, has mandated that merely because accused is found guilty

for the offence under Section 498-A of Indian Penal Code, it does

not follow that on the same evidence, he must be held guilty for

abetting commission of suicide by a woman and it has been so

said, in the following words:-

"Sections 498-A and 306 of Indian Penal Code are independent and constitute different offences. Though depending upon the facts and circumstances of an individual case, subjecting a woman to cruelty may amount to an offence under Section 498-A and may also, if course of the conduct amounting to cruelty is established, leaving no other option for the woman except to commit suicide, would amount to abetment to commit suicide. However, merely because an accused has been held liable to be punished under Section 498-A of the Indian Penal Code, it does not follow that on the same evidence he must also and necessarily be held guilty of having abetted the commission of suicide by the woman concerned."

Crl. A. No. 196/2000 Page 10

20. In the instant case, the evidence on record does not satisfy

the aforesaid mandate of law. The evidence on record does not

indicate that the deceased was mercilessly beaten by the

Appellant/accused in the few months prior to this incident or soon

before this incident or that this incident was preceded by any such

event, which would impel or compel the deceased to commit

suicide, because of the conduct of the Appellant/accused. Mother

(PW-11) of the deceased in her evidence has stated in general

terms that whenever her daughter (since deceased) used to go to

matrimonial home, money used to be given to her and still there

was no peace in the matrimonial home of the deceased. She does

not clarify as to how much money she used to give to the

deceased and why there used to be no peace in the matrimonial

home of the deceased. These are the grey areas, which persuade

this court to give benefit of doubt to the appellant/accused for the

offence of „dowry death‟ or „abetment of suicide‟.

21. An objective evaluation of the evidence on record clearly

brings out the fact that the frustration of the deceased was

because of poverty as there was nothing to eat and because

appellant/accused used to drink and gamble. However, the

evidence on record does not indicate that the beating of the

deceased at the hands of the appellant/accused was a regular

feature, to establish that the continuing cruelty was infact the

reason for the deceased to commit suicide. From the evidence on

record, it cannot be made out that there were repeated complaints Crl. A. No. 196/2000 Page 11 from the side of the deceased regarding the deceased being

subjected to persistent cruelty at the hands of the

appellant/accused. Thus, I am of the considered opinion that the

evidence on record falls short of bringing the offence in question,

either within the ambit of offence of „dowry death‟ or within the

range of the offence of „abetment of suicide‟.

22. The totality of the circumstances of this case, does not

permit this court to sustain the conviction of the appellant/accused

for the offence under Section 304-B of the Indian Penal Code or to

alter it to a lesser offence under Section 306 of Indian Penal Code.

Therefore, unhesitatingly, the conviction of the Appellant for the

offence under Section 304-B of Indian Penal Code is hereby set

aside as being contrary to the evidence on record. However, the

conviction of the appellant/accused by the trial court, for the

offence under Section 498-A of the Indian Penal Code deserves to

be sustained and is accordingly upheld.

23. The sentence imposed upon the appellant/accused by the

trial court, for the offence under Section 498-A of Indian Penal

Code is of rigorous imprisonment for three years with fine of

Rs.1,000/-. On this aspect, it has been submitted on behalf of the

appellant/accused that the two children of the deceased are being

brought up by the appellant/accused and this fact already stands

admitted by the mother of the deceased in her evidence. It is

pointed out that the appellant/accused has faced the agony of trial

Crl. A. No. 196/2000 Page 12 and appeal proceedings in this case for more than a decade and

that as per the nominal roll on record, appellant/accused has

already suffered substantive sentence of one and half years and it

is evident from the record that the appellant/accused is on bail for

the last eight years or so and it is pointed out that appellant is

upbringing the minor children of the deceased.

24. The offence under Section 498-A of the Indian Penal Code

does not carry any minimum sentence. In the peculiar

circumstances of this case, the substantive sentence of the

appellant/accused for this offence stands reduced to one year and

six months, i.e., the period already undergone by him. However,

the sentence of fine is enhanced from Rs.1,000/- to Rs.10,000/-

and the appellant/accused is granted four weeks time to deposit

the enhanced fine, failing which, he shall have to undergo simple

imprisonment for a period of three months.

25. This appeal is allowed to the extent indicated above. Trial

court be apprised of this order, to ensure its compliance.

26. Accordingly, this appeal stands disposed of.

SUNIL GAUR, J.

April 13, 2009
pkb/rs




Crl. A. No. 196/2000                                               Page 13